Citation NR: 9722109
Decision Date: 06/24/97 Archive Date: 06/30/97
DOCKET NO. 93-05 655 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Whether the veteran has basic eligibility for educational
assistance benefits under Chapter 30, Title 38, United States
Code.
ATTORNEY FOR THE BOARD
L. A. Willett, Associate Counsel
INTRODUCTION
The veteran had active service from May 5, 1986, to April 4,
1988.
This appeal arises from a decision issued by the Department
of Veterans Affairs (VA) Regional Office (RO) in St. Louis,
Missouri, which denied the veteran’s claim for entitlement to
educational assistance benefits under Chapter 30, Title 38,
United States Code (Chapter 30 educational benefits). The
veteran was notified of the RO’s decision by letter dated
September 1992. This timely appeal followed.
This matter was previously before the Board, and was REMANDED
in March 1994.
REMAND
As above, the veteran had active service from May 5, 1986, to
April 4, 1988. A certified copy of the veteran’s DD Form 214
indicates that she was discharged prior to completing her
four year enlistment due to pregnancy. She was reportedly
honorably discharged “for the convenience of the Government”
after serving a total of 23 months. The veteran contends
that her pregnancy constituted a medical hardship and, as
such, an early discharge for that reason would establish
basic eligibility for Chapter 30 educational benefits.
The legal criteria governing eligibility for Chapter 30
educational benefits are specifically set forth in
38 U.S.C.A. § 3011(a)(1)(A) (West 1991); see also 38 C.F.R.
§ 21.7042 (1996). In particular, that statute requires that
a veteran who first entered the Armed Forces after June 30,
1985, for a term of enlistment of at least three (3) years,
and is released prior to the completion of that term for the
convenience of the Government, must serve at least 30 months
of continuous active duty in order to be eligible for
educational assistance benefits. 38 U.S.C.A.
§ 3011(a)(1)(A)(ii)(II).
In this case, the veteran’s service records reflect that she
was released from active duty after 23 months of service.
She did not complete her full term of service (4 years or 48
months), nor the required 30 months with respect to the
convenience of the Government exception, and therefore does
not satisfy the eligibility criteria in 38 U.S.C.A.
§ 3011(a)(1)(A)(ii)(II).
However, the veteran may still be eligible for Chapter 30
educational benefits if her pregnancy is determined to be a
physical condition that was not characterized as a disability
and did not result from her own willful misconduct, but did
interfere with her performance of duty as determined by the
Secretary of the appropriate military department in
accordance with the regulations, and if the other legal
criteria are met. 38 U.S.C.A. § 3011(a)(1)(A)(ii)(I);
38 C.F.R. § 21.7042(a)(5)(vi).
The Board REMANDED this case in March 1994 for consideration
of the above and to schedule the veteran for a personal
hearing at the RO. The claims folder contains a copy of VA
Form 22-0569, Report of Contact with DOD, which confirms that
the veteran was separated for the convenience of the
Government due to pregnancy but does not address the relevant
inquiry in 38 C.F.R. § 21.7042(a)(5)(vi), whether the
pregnancy was a medical condition which interfered with her
performance of duty. Accordingly, the Board finds that this
response is insufficient for evaluation purposes.
The Board also notes that the RO did not schedule the veteran
for a personal hearing as instructed by the Board’s REMAND.
The veteran’s file contains a Report of Contact form showing
that the RO attempted to contact the veteran by phone in
December 1996. However, in light of the fact that the RO
appears to have a current address for the veteran and has
contacted her by letter in the past, the Board finds that the
attempted contact by phone only insufficient with respect to
protecting the veteran’s procedural due process right to the
personal hearing she has requested.
Thus, in order to accord the veteran procedural due process
and to give her every consideration with respect to her claim
for basic eligibility for Chapter 30 educational benefits,
this matter is again REMANDED to the RO for the following
action:
1. The RO should contact the appropriate
individual as authorized by the Secretary
of the United States Marine Corps and
ascertain, in writing, whether the
veteran’s discharge due to pregnancy was
considered to be due to a “physical
condition” not characterized as a
disability and not resulting from her own
willful misconduct, that was considered
by the Secretary to interfere with her
performance of duty. This record should
then be added to the veteran’s Chapter 30
file.
2. The RO should contact the veteran, in
writing, to ascertain whether she still
wishes to appear before the RO for a
personal hearing. If appropriate, a
personal hearing should be scheduled.
3. After completion of the requested
development, the RO should then review
the evidence of record and readjudicate
the issue of the veteran’s basic
eligibility to receive Chapter 30
educational benefits. If that
determination remains adverse to the
veteran, she and her representative (if
any) should be furnished with a
supplemental statement of the case and
provided an appropriate opportunity to
respond thereto.
Thereafter, subject to current appellate procedures, this
case should be returned to the Board for further appellate
consideration. The purpose of this REMAND is to assist the
veteran in developing her claim. No action is required of
the veteran until further notice by the RO. The Board
expresses no opinion, either factual or legal, as to the
ultimate determination warranted in this case pending
completion of the requested action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the RO’s to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
RENÉE M. PELLETIER
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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